Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 30 - Evidence - March 26, 2015
OTTAWA, Thursday, March 26, 2015
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-208, An Act to establish the Canadian Commission on Mental Health and Justice, met this day at 10:30 a.m. to give clause-by- clause consideration to the bill.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[English]
The Chair: Honourable colleagues, we are here again discussing Bill S-208. We are in the meeting where I am required to ask you, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-208, An Act to establish the Canadian Commission on Mental Health and Justice?
Some Hon. Senators: Agreed.
Senator Frum: I wish to put forward a motion that the committee does not proceed to clause-by-clause at this time.
The Chair: Do you have the motion with you?
Senator Frum: I do.
The Chair: Do you have copies for all members of the committee in both languages?
Senator Frum: I do.
The Chair: In that case, the motion is in order.
Senator, you have the draft reports in the motion? They need to be circulated as well.
It has been provided to the interpreters and all members of the committee, but obviously committee members need time to read it. With your agreement, we'll allow time for everyone to read it.
Have all senators now had a chance to read it?
Senator Frum, you introduced the motion, but I think it would be appropriate for you to actually read your motion and say that you move the following motion.
Senator Frum: I move the following:
That the committee not proceed to clause-by-clause consideration of Bill S-208, An Act to establish the Canadian Commission on Mental Health and Justice;
That pursuant to rule 12-23(5) the committee recommend that the Senate not proceed further with the bill;
That the committee adopt the draft report; and
That the steering committee be empowered to modify the report for the purpose of correcting any typographical or grammatical errors.
The Chair: Thank you, senator. The motion is properly before the committee, and the floor is open.
Senator Cowan: Does Senator Frum want to speak to her motion?
Senator Frum: Yes, I do, actually.
Senator Cowan: Why don't you speak, and then I'll speak afterwards.
The Chair: Thank you. I was wondering whether you were asking a question.
Senator Cowan: I would like to hear what Senator Frum has to say.
Senator Frum: I would like to begin by commending Senator Cowan for bringing forward this really important public policy issue before this committee.
As a prior member of the Legal Committee, I completely recognize the urgency and importance of the issue that is dealt with in Bill S-208. I do support and understand the impetus behind this bill and the goodwill that it represents to bringing light to an important issue.
However, I think it is fair to say that virtually every witness that appeared before the committee was of the view that the work that is outlined in Bill S-208 is already being managed by the current Mental Health Commission and that those who did support the bill also agreed that if the mandate of the commission is extended, then they were satisfied that that would be an acceptable approach to dealing with this area of public policy. Indeed, we had one witness yesterday, Dr. Simpson, who said that it would be odd indeed to have two commissions with overlapping mandates and that it would be awkward, to use his word, to hive off responsibilities for mental health and justice from the present commission and to give those to a separate and new commission.
That's why, in the draft report, we thought it would be appropriate for this committee to urge the government to extend the mandate. In the last paragraph of the report, we say:
The Committee recognizes the importance of work both underway and anticipated by the Mental Health Commission of Canada within the Correctional Services/Justice system. We urge that their mandate be renewed and adequate resources are made available to implement their program, which should include a heightened focus on those in the correctional services.
I think that recommendation reflects the testimony we heard in committee that the preferred approach by most people, including those who are currently working at the Mental Health Commission of Canada, is to proceed on these public policy matters.
Senator Cowan: I'm obviously disappointed that my Conservative colleagues are not prepared to support this bill. I'm sure I speak for all of us when I say that we were pleased with the wide range of witnesses who appeared on the bill. I think there is a raised level of awareness of these issues, which is the primary objective I had when I brought forward this bill. I want to thank you, chair and colleagues on all sides, for your attention to this matter and your interest in the evidence we heard.
When I originally began my work on this issue, I thought in fact that the right way to proceed was to amend the mandate of the Mental Health Commission of Canada. Then I found, as we heard during the course of our testimony, that there is no legislative mandate and that the mandate given expires in 10 years. There is no statute that we could amend to graft onto this particular focus, or to reorient the work, or to expand the work of the Mental Health Commission of Canada.
As we know, and as Senator Frum and all the witnesses mentioned, the mandate of this commission expires in 2017. There is absolutely no assurance that it will be renewed when that time comes.
Other senators and I have asked the government on several occasions whether they will commit to the renewal of the mandate. I asked most recently on March 12 when I gave notice to Senator Carignan, the Leader of the Government in the Senate, that I would ask about this. I asked and his response, in part, was:
As for the commission's mandate, which is due to end in 2017, you probably already know that a number of proposals have been made to the government as part of the deliberations on the budget.
He went on to say that one of the recommendations in the report of this committee, which led to the establishment of the Mental Health Commission of Canada, was that there would be a sunset of 10 years on the commission's work. Senator Carignan then said:
— I can assure you that the government will work closely with the Mental Health Commission on the best route to take.
I think that's somewhat less than assurance that the commission's mandate will be renewed. We all share the hope that it will be because it's doing good work; but there has been no assurance, as recently as two weeks ago, that it will be renewed.
Many of the suggestions by witnesses that this bill might be duplication was premised on the fact that the Mental Health Commission of Canada would be continuing its work. We have no such assurance. How this work, which I hope all agree is important, will be done absent a renewed mandate for the Mental Health Commission of Canada is not clear to me.
My original intent was to look at the Mental Health Commission of Canada to see if its mandate could be expanded to include this kind of work; but I found that it couldn't be. The alternative was to prepare a new bill to establish a new commission.
From the outset, I said that I was open to any suggestions that would improve the approach I suggested. Ms. Szigeti, as recently as yesterday, made a number of useful suggestions as to how the work could be better done.
I would hope there is agreement that the evidence we heard in the course of our hearings is compelling and that there is a pressing need to address a wide range of issues arising out of the intersection and interaction between the criminal justice system and the mental health system that simply are not being addressed today.
That's not a criticism of any agency or body doing good work in this area, in particular the Mental Health Commission of Canada, but it's simply that the intersection and interaction are not being dealt with, which was the focus of my bill. It seems that the alternative to my proposal of a stand-alone commission is a renewed, expanded and properly resourced commission under a proper legislative framework, I would hope.
A number of witnesses expressed their views as to why a legislative mandate was important. By way of example, I would refer colleagues to the evidence of Mr. Sapers, who said that it gives you stability under a statutory authority, which he has underlying his office, and continuity; and that it removes the question that the Mental Health Commission is currently facing whether they will exist beyond 2017. He said that it's not to say that the statutory authority should not be sunsetted or reviewed from time to time, but that he finds having a legislative basis for his office very important.
I repeat what I said earlier on several occasions. I have high regard for the people who work for the Mental Health Commission of Canada and the good work they have done in so many areas. But, as I am sure we would all acknowledge, their mandate is very broad as it covers the whole gamut of mental health issues and it has only been able to touch on very few criminal justice and mental health issues — the focus of the bill which I brought forward.
Again, I hope we all agree that more work needs to be done. As I said, I hope that my colleagues will support at least observations that would recommend the establishment of a legislative framework for the Mental Health Commission of Canada with an expanded mandate to include many of the items that I am sure we agree are worthwhile, which I tried to address in my bill. If not, I hope that we will agree to recommend the extension of the mandate of the Mental Health Commission of Canada and have it appropriately resourced for a reasonable time.
I had prepared some draft observations. I don't know whether this is the appropriate time but I have them in both English and French and I'd be happy to circulate them to colleagues. They are not long so I might simply read them into the record. I assume we would then engage in a discussion on how to proceed. Is that acceptable?
The Chair: I will look to Senator Eggleton, as I had him next on the list, to see if he wishes to speak before we do that.
Senator Eggleton: In terms of the motions that have been put by Senator Frum, I would suggest that we vote on the first two with respect to whether we proceed with Bill S-208 or not and report such to the Senate.
Depending on the outcome of that, then we would go to Senator Frum's draft report for discussion, assuming that the outcome of the first vote is such that Bill S-208 does not proceed. I would then like to comment further on the draft report. Possibly Senator Cowan's submission could be put on the table as well.
The Chair: Could I just see if that procedure is acceptable to the committee? If it is, then you would speak to the first part, and we would deal with that. Is that what I understand you would like to do?
Senator Eggleton: Yes.
The Chair: The whole motion is before us. It doesn't take the second part off the table. Senator Eggleton is asking that we debate it as if it has two parts and that we concentrate the debate initially on the first part, which is the first two paragraphs ending with, "recommend that the Senate not proceed further with the bill." If that were to pass, then we would go immediately to the consideration of the draft report. Is that understood and agreed?
Hon. Senators: Agreed.
The Chair: That's accepted, Senator Eggleton. I should go back to Senator Cowan.
Senator Cowan: Absolutely, I think that's appropriate.
The Chair: The first recommendation part is before the table now for discussion. Senator Eggleton is speaking to that point.
Senator Eggleton: I will not be supporting the first two parts of the motion from Senator Frum. I have a different perspective on what was in fact the testimony by the witnesses who came before us. I don't agree that they all said that the best way to proceed with this is through the Mental Health Commission. Some of them did say that. However, some of them also said that they felt there needed to be a legislative base — that was the Criminal Lawyers' Association representative — and that there was an advantage to having a focus on this particular issue through a separate organization. They supported that quite clearly.
The representative of the Canadian Association of Chiefs of Police, Terry Coleman, told us about a committee that he had been involved with within the Mental Health Commission — and as I said yesterday, we all love the Mental Health Commission — but it had been disbanded. It was actually attempting to get into this area. I think the problem that we have been hearing from some of the witnesses is that the Mental Health Commission only has two more years left in its mandate and it's gone. Are you speaking for the government, then?
The Chair: Let's not do that.
Senator Eggleton: I'd like a statement from the government. I'm grateful for the fact that you put that in the last part of your draft report, but what we need is for the government to say that it plans to extend the Mental Health Commission. I think we also needed to say that it needs a legislative base and that it's just not going to be a program that willy-nilly can come and go. Mental health is a major issue of our time. Mental health in the criminal justice system is a very key part of that, with the kinds of numbers that we have been seeing that you all have to admit are just horrific. The numbers that we're seeing are astronomical in terms of people suffering from mental illness. We're warehousing people with mental illness in penal institutions, in jails.
I think this kind of problem needs the kind of focus that Bill S-208, from Senator Cowan, gives it. You talk about the Mental Health Commission doing this. I just told you what Mr. Coleman said, but also Justice Schneider who was before us said he thought most of what the Mental Health Commission was talking about in terms of criminal justice was aspirational. There is not a mandate for them to do it. I will talk to your draft report later, but it suggests that it would be simple enough to do this. I don't think it would be.
I think the kind of legislative base, the kind of focus that Bill S-208 would give this, plus the fact that there is an uncertainty — you shake your head, but there is an uncertainty still about the Mental Health Commission going forward. We should proceed to clause by clause.
I'll vote against the first two parts of the motion. If they carry, then we'll go on and talk about the draft report. If they don't carry, then I'll ask that we proceed to clause by clause on Bill S-208. I don't know if this will do it.
The Chair: Are you ready for the question? The question has been called that the committee not proceed to clause- by-clause consideration of Bill S-208, An Act to establish the Canadian Commission on Mental Health and Justice; that, pursuant to rule 12-23(5), the committee recommend that the Senate not proceed further with the bill.
Those in favour of the motion —
Senator Eggleton: Recorded vote.
The Chair: You wish a recorded vote?
Senator Eggleton: Yes.
The Chair: I will now make a comment before the vote. I generally try not to vote on these matters as chair, but I have watched this very important debate. I believe that the issues that have come forward as a result of Senator Cowan introducing this important issue for consideration have led to us having a considerable understanding of the background to these issues. It is an area of which I have some general understanding in terms of my background in terms of how to deal with things of this magnitude of importance. I think the issues raised have to be considered, but I do have a very clear opinion as to how that should occur. It's not that I have any disagreement with the objectives, but I do have a very clear opinion as to where it will occur. I therefore will vote on this, and the chair is required to vote first.
I am in favour of the motion presented by Senator Frum.
Jessica Richardson, Clerk of the Committee: The Honourable Senator Ogilvie?
Senator Ogilvie: Yes.
Ms. Richardson: The Honourable Senator Cowan?
Senator Cowan: No.
Ms. Richardson: The Honourable Senator Eggleton?
Senator Eggleton: No.
Ms. Richardson: The Honourable Senator Enverga?
Senator Enverga: Yes.
Ms. Richardson: The Honourable Senator Frum?
Senator Frum: Yes.
Ms. Richardson: The Honourable Senator Manning?
Senator Manning: Yes.
Ms. Richardson: The Honourable Senator Merchant?
Senator Merchant: No.
Ms. Richardson: The Honourable Senator Munson?
Senator Munson: No.
Ms. Richardson: The Honourable Senator Nancy Ruth?
Senator Nancy Ruth: Yes.
Ms. Richardson: The Honourable Senator Raine?
Senator Raine: Yes.
Ms. Richardson: The Honourable Senator Seidman?
Senator Seidman: Yes.
Ms. Richardson: The Honourable Senator Stewart Olsen?
Senator Stewart Olsen: Yes.
Ms. Richardson: Yeas, eight; nays, four.
The Chair: The first part of the motion is carried eight to four.
We will therefore move to the second part.
Senator Cowan: Thank you, colleagues. I have what I hope will be acceptable observations which I would propose perhaps as an alternative to those proposed by Senator Frum. I have them in both languages. Perhaps I could ask that they be circulated. They're not long.
I might suggest that if the committee has decided that we're not going to proceed with the bill, to recommend that these issues be handled by a renewed, expanded and extended Mental Health Commission of Canada. These observations that I am suggesting reflect that decision. With respect, I think they represent a more balanced view of what we've heard. I've intended to both reflect the views of the majority about how we ought to proceed, and then the minority.
If I may, I will read into the record what I would propose. While I'm doing so, copies in both official languages are being circulated to colleagues.
The testimony that your Committee heard was strong and compelling: Canadians struggling with mental health problems are severely overrepresented across our criminal justice system. As Howard Sapers, the Correctional Investigator of Canada, testified:
"The intersection between mental health and justice is both important and complex. Over the years, there have been many ongoing attempts to better understand and navigate this intersection. It may well be time for the creation of a high-level body to bring additional focus and lead important discussions about challenges and best practices."
Your committee agrees. We fully support the purpose of Bill S-208 as set out in the preamble to the bill, and agree that federal leadership is required to reduce the overrepresentation of Canadians with mental illness across the criminal justice system. The issue in discussion was not what needs to be done, but how to best achieve these agreed goals.
A number of members of the Committee believe that the existing Mental Health Commission of Canada ("the MHCC"), which was established by the current government following a recommendation by this Committee, would be best situated to fulfil the purpose, powers and duties detailed in Bill S-208. It has the expertise, already established networks of experts, critical stakeholders as well as provincial and territorial governments, and clearly stated its willingness to take on the tasks set out in Bill S-208, if given the mandate and resources to do so.
However, other members expressed concern that the MHCC's mandate is due to expire in 2017 and the government has not expressed an intention to renew its mandate. Concern was also expressed that the MHCC already has many important issues relating to mental health that it proposes to address if its mandate is renewed, and would not be able to provide the focused leadership needed to properly and fully fulfil the mandate set out in Bill S-208. Finally, some members were concerned that the MHCC, which is not established by statute, lacks a continuity and stability (as well as accountability to Parliament) that would be desirable in a Commission tasked with the critically important powers and responsibilities set out in Bill S-208.
On balance, your Committee believes that if properly resourced and directed, the tasks detailed in the Bill could be fulfilled by an existing federal entity, such as the Mental Health Commission of Canada, rather than establishing a new Commission as proposed by the Bill.
Accordingly, although we recommended that Bill S-208 be not now proceeded with, we also recommend that the Senate urge the Government to provide the Mental Health Commission of Canada with a renewed mandate, amended to incorporate the purpose, powers and duties set out in Bill S-208, and that the renewed Commission be provided with the financial resources necessary to meet these new expanded responsibilities.
It seems to me, chair, that I have reflected the decision of the majority here that we not proceed. The recommendation of all of us is that we would support an extension of the mandate and urge the government to do that. My suggested report reflects the views of the majority, I think fairly, and the views of those of us who favour an alternate approach. With respect, I suggest these might be alternate observations to those which Senator Frum has proposed.
The Chair: I would like to technically get an idea of how you see this. Let me ask you a simple question. Do you see this completely replacing the preamble provided by Senator Frum, or do you see it as perhaps replacing the last paragraph of her submission and then being continued on from there?
Senator Cowan: No. My hope was that these would be the observations that the committee would accept. I would be quite happy to leave any wordsmithing to the steering committee, but what I have tried to do is reflect both sides.
The Chair: I understand. Why don't we do as we did at Senator Eggleton's suggestion, to split things in two? Why don't we put it to the committee first? Let me get a sense from the committee as to whether they would see this as the observation. It's obvious that both sides are suggesting observations, so the question of appending observations isn't in question. It's a question of how we go about doing that.
One possibility is to accept this as the observation document, and the other is to have it as some combination of the two. I wonder if I could hear from the critic of the bill first and then get a sense from the committee.
Senator Frum: Thank you, chair. I would say there are certain similarities and parallels to the two sets of observations. I don't mind if the steering committee chose to do an amalgamation of the two sets of observations to create one observation that would be acceptable to the steering committee and then be brought to the committee. I would be okay with that. I have difficulty replacing Senator Cowan's observations with this report because there are things in here that I'm not comfortable with.
For example, the suggestion that the MHCC has stated a willingness to take on the task set out in Bill S-208. They indeed have. As part of their recommendations for action in a plan they came up with in 2012, they have five action points that they have already identified that are —
Senator Cowan: Isn't that what I say?
Senator Frum: Well, you say "a willingness to take on the task set out in Bill S-208." That suggests they would do it in the future if given the mandate and resources, but they have already begun to address these issues. They have not ignored these issues.
Senator Cowan: I didn't say they did.
Senator Frum: Well, I find the wording as you have it in that paragraph — listen, as I say, on the whole, I don't have a lot of disagreement with what's in here, but I do have specific wording issues.
For example, in the next paragraph after that, you say that concern was expressed that they are not able to provide the focused leadership needed to properly fulfill the mandate in Bill S-208. I don't know that we heard that from them. I don't think they don't —
Senator Cowan: We did.
Senator Frum: Well, I disagree.
Senator Cowan: Well, we can look at the main transcript.
Senator Frum: Then, in the next paragraph after that, you say it could go to an existing federal entity such as the Mental Health Commission, as opposed to just the Mental Health Commission; that's the obvious place for it to go. So I question the use of the words "such as the Mental Health Commission."
Then, in the last paragraph, I don't know that we want to tie their hands that they have to adopt everything that's in Bill S-208 as if it's not part of their mandate already. I think they should have the freedom to approach mental health and correctional services in their own way, as they have already done. I don't know that we need to be so prescriptive in how they do that by saying they have to do it as in Bill S-208.
Having said all of that, the spirit of what you are saying is in line with the spirit of what this report says, which is why I think the steering committee could probably handle some kind of compromised wording.
The Chair: I will go to Senator Eggleton and then I will make an overall observation.
Senator Eggleton: I'm going to move that we refer these two texts to the steering committee to attempt to amalgamate them. The last paragraph in each one of them is really the operative paragraph, and they're very similar. So, I think the stuff that comes above it is not the important stuff, but I recognize we need a little bit of context. I think we can come up with an amalgamation of the two.
It wasn't our first choice. Our first choice was to kill Bill S-208, but we're now in that circumstance where recommendation of the committee is carried, so I think we can come to an agreement on this.
Senator Cowan: I support that. I would be happy to refer that to my colleagues and maintain the right to criticize your product.
The Chair: I think it says in the regulations of Parliament somewhere that steering committees using the formal title of the committee are not capable of error.
Senator Cowan: Infallible.
The Chair: That's the word I was looking for. I couldn't grasp it quickly. Thank you.
Let me make sure that I have understood this and that you have all understood what I think Senator Eggleton clearly said.
What I heard Senator Eggleton say was that he felt the last paragraph of each document conveys the essence of the discussion, and he suggests that they be the basis by which the steering committee be empowered to come up with a report to Senate — and it has to be a report to Senate, since this is a bill and not just observations. It would be "the report." Is that understood?
Some Hon. Senators: Agreed.
The Chair: Is that agreed by the committee?
Hon. Senators: Yes.
The Chair: Is there any dissenting vote?
I consider that a decision of the committee.
Now, I do want to expand on the comments that I made earlier. I think this has been an extremely important set of hearings. I think we all learned things that give us a much better understanding of the efforts underway to deal with these issues and the challenges that lie ahead.
I think Senator Cowan needs to be congratulated and appreciated for having brought this important phase of development of issues around mental health to this level of attention. I think the issues in which there were disagreements are simply the way in which one would move forward to deal with this.
I very strongly believe that there must be a Mental Health Commission or body of that type evolved, based on the years of experience to this date. It is absolutely clear to me, from prior to this but now much more substantially enhanced by the testimony, that there has to be within that operation a very clear line of focus on the criminal justice system and those who suffer from mental issues within that system.
We heard a lot about the importance of recognizing those issues before they come in touch with the criminal justice system, but once they do, there are a number of issues that are important in addition to the importance of mental health issues.
Again, I want to come back to Senator Cowan and express my appreciation for your having brought this important issue forward. I want to express my appreciation to all members of this committee for once again being able to come together and find a way of recommending forward with regard to an incredibly important issue.
Those are my observations. I do want to say that I thought we had some very good witnesses.
Senator Seidman: When I read your observations, Senator Cowan, I understand fully the importance of the issue that you brought forward to heighten our sensitivity to the urgency of the need to deal with these issues in the criminal justice system, the issues of mental health and criminal justice, and there's no question that the hearings were very valuable.
I would also like to say thank you to you for putting forward a written text of observations, because I think that was an extremely helpful way to focus the discussion today. You do say here very clearly, and I fully agree with you, that the issue in discussion was not what needs to be done but how to best achieve these agreed goals. I fully agree with you as far as that aspect is concerned.
Thank you very much. I'm sure that we will be able to amalgamate both of these reports satisfactorily to emphasize the urgency of dealing with this issue.
Senator Stewart Olsen: I, too, appreciated the discussion. I thought it was really good and quite eye-opening in many ways. I'm wondering, in our report to the Senate floor, if we could include some measure of recognition of Senator Cowan's work on this issue so that he be recognized for being the prime mover of this way forward. I'm not sure it can be, but I think it would be appropriate.
The Chair: The sentiment is obviously one I think we all share. I'm wondering if the correct way of introducing that might be when the motion is spoken to in the Senate.
Senator Stewart Olsen: That would be fine.
The Chair: I can't imagine that would not occur and I think, with agreement, we would ensure that those who speak to it — the critic of the bill is certainly indicating she's prepared to speak to it and to make that very important reference. Would that be satisfactory, senator?
Senator Stewart Olsen: I'm fine with that.
Senator Munson: This is one of those nice moments in the Senate and I have enjoyed listening to this debate. I sat on the Social Affairs Committee, so when you come to the wordsmithing and you come to common ground, perhaps with the report, you should have a little news conference led by you, chair, and the others here, to show the public just how senators on both sides can come together on a common cause, because this is an extremely important and timely issue. Thank you.
The Chair: We would take that under advisement, senator. I want to remind you that we are to focus on the last paragraph of each document and pull that together as the basis of the report. The clerk has asked me to ask both Senator Cowan and Senator Frum if they would forward to her an electronic copy of their documents that would expedite the combination.
Senator Nancy Ruth: I would like to see us focus on more than just the last paragraph. I think there are inferences throughout the text in both documents that are unfortunate, so I would like the steering committee to look at both documents in full.
The Chair: I do want to make certain, though, that the steering committee will make the final decision, and we have to have the guidance, and the motion that was agreed to, the recommendation that Senator Eggleton put forward uses the bottom two, and your observations will be taken into consideration. Our analyst has taken note of that, and we will deal with that as best we can.
On that final note, I declare the meeting adjourned.
(The committee adjourned.)